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Thursday, July 20, 2017

TX DPS ends freebie crime-lab services for law enforcement

Local governments complain near incessantly in Texas of "unfunded mandates" imposed on them by state government, but almost never acknowledge the unfunded mandates that operate in the other direction. For example, as Grits wrote in February:

The most important unfunded mandate in the criminal-justice system comes from local government decision makers - especially prosecutors and judges - making choices about imprisonment at TDCJ for which state government must pay 100 percent of the costs. So there's a political incentive for locals to demagogue as "tough on crime" and maximize use of prison because they aren't accountable for the expense of incarceration. And many of them, particularly in rural jurisdictions, gleefully succumb to that incentive.

Larger agencies either have their own labs or have money to contract out, so the burden of this change will fall more harshly on rural and smaller agencies. And at the moment, many of those agencies - hundreds of them, in fact - don't have forensics budgets at all because they've always relied on DPS. (What they'll do until their jurisdictions get around to passing a new budget will be anybody's guess.)

There will be much weeping and gnashing of teeth over this change, but a socialized market for forensic services for too long has encouraged their overuse. If instead, local agencies must chip in for part of the cost, over time they will likely prioritize cases with the greatest impact on public safety and eschew the petty stuff.

That sort of use of discretion based on cost-benefit analysis is a good thing. We arguably need more of it in the justice system; the utility of the give-em-a-blank-check model has long ago reached its limits.

25 comments:

Anonymous
said...

A slightly different view, why not lateral the cost from the law enforcement agency to the state prosecutors. In the purest sense, the Police have investigated alleged criminal acts, identified suspects, gathered and packaged physical evidence and presented the same for criminal prosecution. If the state's attorney needs forensic services to prosecute the suspect, let the prosecutors pay the fees.

Moreover, this would eliminate a common allegation that the lab conspires with the Police. Levy the forensic obligation upon the prosecutor.

The underlying question is- does the DPS crime lab receive funding from some source other than the tax payer? So then the tax paying citizen gets to pay twice for the same service? First to build and staff the crime lab and then again when the lab actually performs their assigned tasks? Call me names if you will but this is nonsense.

It is my hope that this move so enrages the rural and suburban communities that they penalize the DPS for their inept attempt at double dipping the tax payer in the next legislative session. Let the DPS twist in the wind for awhile,maybe that pain will prompt effective learning.

That's quite a spin you have going there, Tom. Sounds like you're ready to go out and oppose some toll roads.

But this isn't that. Right now, Texans in urban areas pay for DPS crime labs through taxes and also for crime labs at their local PDs so they receive NO benefit from DPS services. That's one reason it's untenable not to require user fees.

Also, if you read the story, the Legislature shorted their budget and told them to make it up through fees, which they're doing. If rural and suburban communities are "enraged," they should turn their ire to the Legislature. Blaming the DPS amounts to shooting the messenger.

That said, whether prosecutors or PDs pay for crime-lab services makes little difference to me. I just think it needs to stay local to constrain overuse of scarce resources.

Beware the law of unintended consequences....Cases have been prosecuted in this state without forensic evidence for decades. My fear is that in many of these cases law enforcement and/or prosecutors will still make arrests, file charges, obtain guilty pleas, etc. without forensic testing being done. This will be true especially in dope cases where people will plead guilty just to out of jails. Alternatively, look for rural agencies to look for independent labs which may be less expensive and perhaps not up to the same quality standards that DPS adheres to. As this state pushes to enhance the quality of forensic science in this state vis a vis the criminal justice system, this could turn out to be regressive. I wish the subject had been put to a little more discussion and debate before the new policy was sprung on everyone after the session was over.

@6:55-"perhaps not up to the same quality standards that DPS adheres to"

That's funny. DPS was responsible for the accreditation (and annual audits) of all the crime labs in Texas for over a decade. However, look at the number of botched cases due to the forensic science "mishaps" in the past decade. It's embarrassing. What was known for the past couple of decades is that the accreditation process (and annual auditing) is superficial at best, serving only as an annoying formality necessary for legal reasons and federal funding. DPS largely rubber-stamped every thing. Even the sleepy Forensic Science Commission stated in 2016 (regarding the APD lab shut-down) “It raises questions about what the auditors were doing.”

Now, guess how many cases DON'T go to trial because of botched forensics. A crime lab could have a 50% false negative error rate, but no one would ever know. We'll never know because those forensic errors are never (or rarely) documented, and there's no reason to release those documented events to the public because there is no trial, no record. Hence, no discovery, no explanation. Perpetrators remain free on the streets and victims don't get justice.

The amount of Federal Grant funding coming to Texas every year for the forensic science community is gargantuan. The two most prominant grants are the "Paul Coverdell Forensic Science Improvement Grants Program" and "The Forensic DNA Backlog Reduction Program" (or "DNA Capacity Enhancement and Backlog Reduction (CEBR) Program") coming from the NIJ.You can pull up the awards by year at:https://www.nij.gov/funding/awards/Pages/2004.aspx(filter by State, Awardee, or year 2004-2016)

And there are numerous other grants available also.

Millions upon millions of dollars are given to Texas every year to improve the forensic sciences. Yet we still have Monkeys running the crime labs, misunderstanding basic math and statistics, cross-contaminating evidence, using expired chemicals, handling biological evidence without gloves, creating misleading and fraudulent documents, and testifying falsely. -- without accountability.

Now TxDPS wants to charge for all this. Twenty gallons of forensic shit in a 10-gallon hat.

I would like to see a discussion regarding the practice of the ADA's having a second job with a criminal defense lawfirm. In this county there seems to be no checks and balances. Before you had LEO's did the investigation and then took the evidence to the DA's office. The DA now says outloud that they are better than LEO's so they do everything. I have ask in open court why we even need any law enforcement in this county since the DA knows everything. Think of the savings. There seems to no integrity anywhere but with an ADA working in the lawfirm that is defending the same people that the DA is charged with prosecuting. Of course the friends never have any investigation let alone a charge. Helps keep everyone in line and keeps him in office. But I would like to know why no one else seems to question the ADA's moonlighting on the other side of the aisle.

The comment about local authorities utilizing opportunities to incarcerate in state facilities is interesting. This is especially true when you review the history of what we still refer to as 'state jails'. Why as a criminal justice community do we continue to incarcerate low level offenders that should be on community supervision or in a county jail inside these state institutions?

"The most important unfunded mandate in the criminal-justice system comes from local government decision makers - especially prosecutors and judges - making choices about imprisonment at TDCJ for which state government must pay 100 percent of the costs. So there's a political incentive for locals to demagogue as "tough on crime" and maximize use of prison because they aren't accountable for the expense of incarceration. And many of them, particularly in rural jurisdictions, gleefully succumb to that incentive."

Really, so lets follow that logic all the way from beginning to end. State government writes laws local jurisdictions enforce. But its local jurisdictions enforcing the state laws that are overburdening the state by enforcing the laws the state adopted. DPS itself arrests folks, turns over evidence to the counties which then forward it to DPS for testing.

@Mark Hogberg/11:46, state government gives local government wide DISCRETION at sentencing. E.g., punishment for a first-degree felony is 5 years to life. And rural jurisdictions are seeking and getting much longer sentences for the same crime than their urban and suburban counterparts, in some cases by orders of magnitude. Similarly, probation departments/judges have wide discretion when to revoke probationers, and the proportion of probationers revoked each year varies widely by jurisdiction. Some counties behave responsibly, but there are no incentives for outliers to rectify bad behavior when it's easier and cheaper to offload their problems to the state and make them foot the bill.

All I'm suggesting are checks and balances to ensure that locals use their discretion in the taxpayers' interests instead of offloading costs from local government to the state.

@8:04, GREAT point about testimony time.

@6:55, that's an important warning, I agree. Because Texas prosecutors, like prosecutors nationally, have increased the proportion of cases they take to conviction from one out of three arrests to two out of three, I tend to think they'll respond by just reducing that ratio. But they could also pursue crappy cases that result in false convictions. Indeed, both (easily) could be true.

Would you have any idea if this would include computer forensics done by the Attorney General's office in sex offender cases? So many are being prosecuted by the AG's office and a LOT of time is being spent on computer forensics. Plus the testimony time. It was outrageous for the prosecution my spouse went through, so curious!

You seem to be operating with an us against them mentality; the gist of your argument being that your measure of what is reasonable and just does not align with all 254 counties in Texas. If courts and prosecutors are acting within the sentencing guidelines, whether or not you agree, their actions by definition are then unfairly categorized as "bad behavior". I will agree that many times the system perpetuates the very problems it is tasked with fixing, case in point the driver responsibility/surcharge program. Perhaps the guidelines to which you refer are in need of amendment.

Mark, that's silly. Simply acknowledging the real-world incentives facing actors in the justice system in no way constitutes an "us against them mentality." The gist of my argument is that unfunded mandates run in both directions and we only ever hear about ones the state imposes on counties. (I'd say the Texas Association of Counties fosters an us vs them mentality on unfunded mandates, fwiw.) But the FAR bigger unfunded mandate(s) are imposed by locals on the state, and this blog has long suggested incentives to right-size their use of state criminal-justice resources. Doing so with crime labs is a good start. Even better would be a cap and trade program on sentencing so that the decision makers generating the costs of mass incarceration are also financially responsible for it.

The state makes the law, counties enforce it. By its very nature it easily becomes an us against them mentality. Try to change sentencing guidelines and watch what happens. Every two years all agencies receiving state funds compete against one another for the same pot of money. Most are concerned more about self preservation over what is in the best interest of society and the world in which we live. I will concede that some sentences are too long, and some jurisdictions are over incarcerating felons. But the notion that DPS can make up a shortfall in its budget in this manner is unethical. DPS arrests folks, they then turn over the case to the county to prosecute it, then the county has to pay DPS to test the evidence in the very case DPS brought. How is this different than a local municipality generating revenue for itself by writing tickets; we saw major legislation on that in the mid 90"s. Tell me you are not so naive to believe that counties are actually going to pay. They may initially, but I promise you that those funds, both from counties as well as cities will be recouped from the individual charged with the crime by attaching the cost as a condition of probation, or as a part of their plea deal. The court costs paid by these folks is already paying a portion of the State Polices retirement, see law enforcement supplemental retirement fund; which by the way is going broke. I like the cap and trade idea, but its not just counties that need to have skin in the game. I too have read most of the sentencing research. Something I have not read, but would be interested in is a direct comparison by county regarding sentencing. Comparing felons to misdemeanors. It would be interesting to know if counties are minimizing sentences on misdemeanors to local jails while maximizing sentences to the state on felons. If that is occurring in jurisdictions I think at that point your argument regarding unfair burdens on the state has merit.

The other problem with Grits reasoning here is that the legislature controls and limits the counties' ability to raise revenue. Until the legislature stops the discussion regarding appraisal caps and otherwise handcuffing county financing, any discussion about charging counties for a state service is pretty darned hypocritical.

On a side note, I have heard it said that under state law it is the responsibility of the investigating agency (PD or SO) to present to the district attorney not just a case that is indictable, but one that is fully prosecutable. Under this view, all evidence collection, including laboratory work is the responsibility of the investigating agency. I have never been able to find where this is stated in the government code. If someone can verify/correct that understanding, I would appreciate it.

But it should matter if the fee is paid by the prosecutor or the police. The District Attorney is a county level elected official and his/her budget is an amalgam of federal, state and county funds. In contrast hundreds of small municipal Police Departments budgets are primarily funded from the smallest of all forms of government- the city.

I renew my objection- this is not right. The state created the legislation and enrolled it as law. The Police Officers are enforcing that law but now with the add on of unfunded forensic fees from the DPS lab to buttress the prosecutors case. Where is that money to come from?

On a related note- was surprised by your comment about a socialized market. I understood you to be less than enthused with capitalism - sorry Free Market - encroachment into the CJS ( the for profit prisons).

Alas this is maybe just a cruel shell game- it's all tax payer money- just whose bucket it comes from. I think it should be another bucket. But DPS (or as you noted the Leg) may have wounded themselves- other forensic services are available, so maybe this business will migrate elsewhere. The DPS Crime Lab does generally competent work, but nothing legally requires us to use that service. Accredited forensic labs exist across the United States- I will find a certified lab to conduct basic forensic tests elsewhere - Alabama to California. I just look forward to the Juries response to that - you had to send it to Alabama for tests? Let the fun begin...

3:32:00 PM it is allowed for a prosecutor to do family law or civil law or write wills, etc.

But please look at Texas Code of Criminal Procedure Art 2.08. I believe that the disqualification for District and County Attorneys "to be of counsel adversely to the State in case, in any court" also applies to their Assistants.

Well, the Governor just told DPS to lose the fees so all the wild speculation can be thrown out the window. Maybe he'll call a special session to increase the driver surcharge fees or ditch some of the reforms of recent years, it's not easy predicting what he will do next.

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